Online Reputation Management

Online Reputation Management is a thing. An important thing. But not so important that the Rules of Professional Conduct go out the window when a lawyer manages her online reputation.

Rule 1.6 prohibits a lawyer from disclosing information relating to the representation of client. The rule is much broader than the attorney-client privilege and applies to all information relating to the representation no matter the source.

There are exceptions to the rule. They are:

the client’s gives informed consent to the disclosure;

disclosure is impliedly necessary to carry out the representation;

disclosure is mandated by Rule 1.6(b);

disclosure is permitted by Rule 1.6(c).

Rule 1.6(c)(3) permits a lawyer to disclose information related to the representation of client:

to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client; or,

to establish a defense to a criminal charge or civil claim against the lawyer based on conduct in which the client was involved; or,

to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

As I’ve previously blogged, a negative online review is not a “controversy between the lawyer and the client” that triggers the exception. Neither is a negative online review a “proceeding” in which allegations have been made against the lawyer. My blog posts, which includes advisory opinions & disciplinary decisions, are here:

As the headlines suggest, the posts focus on what not to do. For instance, don’t reveal client confidences in response to an online review. Don’t post fake positive reviews. Don’t create a fictitious lawsuit in order to get a court to order a website provider to take down a negative review.

Whether on AirBnB, Yelp, Amazon, or myriad other sites, I suspect many lawyers have read through the reviews before making a purchase or reservation. Odds are, potential clients are doing the same before hiring you. Today’s post in the ABA Journal helps to frame not only a lawyer’s professional obligations when dealing with online reviews, but the marketing benefits that come with knowing how best to manage an online reputation.

Lawyer represents Client in a civil matter. Trial is scheduled for next week. Most of Lawyer’s strategy sessions with Client have focused on Witness. Lawyer plans to have Witness testify and offer evidence in support of Client’s claim.

Yesterday, Client said to Lawyer:

“We got somethin’, we both know it, we don’t talk too much about it
Ain’t no real big secret, all the same, somehow we get around it
Oh listen, it don’t really matter to me, baby
You believe what you wanna believe.”

Lawyer was somewhat confused, but, having thought about it, thinks that Client might have convinced Witness to offer false evidence. Which is most accurate?

The key here is that Lawyer suspected, but did not know, that Client might have convinced Witness to offer false evidence. A prudent course here would be to remonstrate with client & to make clear to Client (1) that “C” would be correct if Lawyer “knows” Witness will offer false testimony; and, (2) that if Lawyer discovers after-the-fact that Witness provided false evidence, Lawyer has a duty to take reasonable remedial measures, up to and including disclosure to the court.

“You’re jammin’ me, you’re jammin’ me
Quit jammin’ me
Baby you can keep me painted in a corner
You can walk away but it’s not over.”

Assuming that Attorney is correct and that withdrawal is mandatory, which of the following will Attorney be most likely to cite in the motion?

A. Client has failed substantially to comply with the terms of the fee agreement.

B. Attorney has discovered a non-waivable conflict of interest with a former client.

C. The representation has been rendered unreasonably difficult by Client.

D. Client insists on taking a course of action that Attorney considers repugnant.

Rule 1.16(a)(1) mandates withdrawal when continued representation will result in a violation of the rules of professional conduct. Continuing despite a non-waivable conflict would cause Attorney to violate the rules. Thus, B is correct. Choices A, C, and D are instances in which withdrawal is permitted, but is not mandatory.

Continuing the scenario from the previous question, Attorney filed the motion to withdraw. As it remained pending, stress & anxiety bedeviled Client. Then, the court granted the motion. Shortly thereafter, Client contacted the VBA’s Lawyer Referral Service and received a list of potential new lawyers. Uplifted, Client called Attorney to schedule an appointment to pick up the file. Client said:

“I rolled on as the sky grew dark
I put the pedal down to make some time
There’s something good waitin’ down this road
I’m pickin’ up whatever’s mine.”

This is Rule 1.16(d). After complying with the rule by delivering the file, there is nothing in the rules of professional conduct that requires Attorney to keep a copy of the file. Most carriers, however, have language in their policies that require lawyers to keep copies of a closed files for X number of years.

Continuing the scenario . . . Client followed through on her statement that Attorney could walk away, but it’s not over. Before runnin’ down her dream elsewhere, Client posted a negative online review about Attorney, sued Attorney for malpractice, and filed a disciplinary complaint against Attorney.

Attorney intends to respond with:

“She’s a good girl, loves her mama
Loves Jesus and America too
She’s a good girl, crazy ’bout Elvis
Loves horses and her boyfriend too

It’s a long day livin’ in Reseda
There’s a freeway runnin’ through the yard
And I’m a bad boy, ’cause I don’t even miss her
I’m a bad boy for breakin’ her heart”

Assume the information in the response is true, but is not generally known. Attorney would likely violate the rules by:

A. Posting the information online, in response to the negative review.

B. Incorporating the response into the defense of the malpractice complaint.

C. Incorporating the response into his answer to the disciplinary complaint.

D. None of the above. No matter the forum, Client put the representation in issue.

Client is a “former client.” Rule 1.9(c)(2) prohibits disclosure of information relating to the representation of a former client unless the rules otherwise permit disclosure. Here, Rule 1.6(c)(3) permits B & C. The rule is often referred to as the “self-defense exception” to the general prohibition against disclosure. It is well-settled that the “self-defense exception” does not apply to negative online reviews. For more, see my post Negative Online Review? What NOT to do.

A few days ago, I posted Negative Review? What NOT to do. The post focused on schemes to sue stooge defendants in order to obtain court orders that require negative online reviews to be scrubbed.

Well, here’s another example of what not to do in response to a negative online review. As a bonus, it includes a tip on what not to do in response to a disciplinary investigation.

Lance Eldon Isaac is an attorney in Colorado. In 2013, T.S. retained Isaac in a criminal matter. T.S. was not satisfied with the representation and posted a negative review on Avvo.Com. He also created a website to express his dissatisfaction with Isaac. The negative review found its way to Google Plus, ripoffreport.com, and other websites.

Shortly after T.S.’s posts, another former client of Isaac’s, D, posted a negative online review. It also found its way to Google Plus.

In 2014, Isaac hired a search engine optimization consultant. The consultant found the reviews and recommended that Isaac respond. He did.

In response to T.S., Isaac posted:

‘[T.S.] actually retained me twice, on the same case, in which he was charged

with felony theft. He had been referred, to me, by a colleague, who is a

former judge, deputy district attorney, mediator and private practitioner.

After terminating my services, the first time, because I was unable to force the

prosecutor to do his bidding, he came to realize that no lawyer has a magic

wand, and rehired me on the case. As he had, before my first withdrawal,

[T.S.] became nothing but abusive, demanding, insulting and offensive, and I

decided to terminate my representation, as the result of his conduct. In order

to earn my $3,500.00 disposition fee, I telephoned the district attorney, on

numerous occasions but, as i s common, among many prosecutors, the

deputies never actually answered my call, and almost never returned it. It was

“I never appeared late, for any court appearance, on behalf of [D.], and was always fully prepared, to conduct the business at hand. Logic and common sense dictate that, if I were to attempt to leave a hearing before the court had concluded it, the judge would, as it were, ‘have my head.’ No such thing occurred. Likewise, it is nonsensical that a lawyer would refuse to use relevant evidence helpful to his client, especially if it is ‘handed to him.’ [D.] cannot corroborate anything that she claims, because it did not happen. For all of the many hours that I spent, in vigorous defense of her, against felony assault,felony eluding of police, and driving under the influence of alcohol, [D.] paid me, with a $4,000.00 insufficient-funds check. She then committed two criminal offenses, by fabricating ‘affidavits,’ which were, purportedly, executed by former (and current) relatives, forging their signatures to them, then ‘notarizing’ the forged signatures, when she was no longer

commissioned, as a notary public. [D.’s] dishonest, fraudulent and criminal

Isaac’s testimony at the disciplinary hearing did not help his cause. From page 8 of the decision, with “People” referring to the disciplinary prosecutor’s office:

“Though Respondent acknowledged he had violated Colo. RPC 1.6, he also inveighed against T.S. and D., as well as the People, as ‘responsible for bringing me to

where I am today.’ As regards his former clients, he remarked, ‘the universe brings these people to me. This isn’t my first rodeo when it comes to sociopaths and psychopaths. I’ve represented several of them in my career.’ Concerning

the People, he expressed outrage that they had initiated the investigation after going onto the web and finding his posts. He ruminated that it was ‘not just unseemly’ that the People had done so, but in fact ‘very reminiscent of Stalinist Russia, it’s reminiscent of Nazi Germany. It’s where we go out looking: where can we find a Jew? where can we find a homosexual? where can we find somebody to do something to?’ He also complained that ‘as a result of what has happened on the internet my business has plummeted. Once people start putting this kind of stuff out there about you it can end the whole game, and that’s basically what’s happened to me,’ he said.”

A hearing board concluded that Isaac’s responses to the negative online reviews violated Rule 1.6 by improperly disclosing information relating to his representation of T.S. and D. The board rejected Isaac’s argument that the “self-defense” exception in Colorado’s version of V.R.Pr.C. 1.6(c)(3) allowed him to respond to the negative reviews. The board suspended his law license for 6 months.

As online reviews of services increase, more & more service providers are grappling with how to respond to negative reviews. Lawyers are no different.

I’ve blogged and taught on Online Reputation Management. The general rule for lawyers is that it is okay to respond to a negative review, so long as the response does not disclose information relating to the representation. The fact that the client posted the review does not invoke the “self-defense” exception in Rule 1.6(c)(3).

I’ve included a digest of cases and advisory ethics opinions at the end of this post. For now, here’s an example of what not to do in response to a negative online review.

Many companies will not scrub (“take down”) a negative online review absent a court order. So, if Customer posts a negative online review about Restaurant on Yelp, Yelp might not take it down unless Restaurant secures a court order directing Yelp to do so. Seems simple so far, right?

Well, here’s what’s happening: plaintiffs are suing “stooge defendants” to obtain fraudulent orders. What’s that mean? It means this: Mike Kennedy posts a negative online review about Lawyer on Site. Lawyer files suit against Mike Kennedy asking for an order directing removal of the post (or hires a reputation management company that offers “lawsuit removal services.”) Then, Lawyer finds someone who pretends to be Mike Kennedy, accepts service, and stipulates to the judgment. Lawyer delivers the order to Site, and Site removes the post.

It seems this has come to light as a result of the fact that most sites notify the real reviewer that his or her post is being scrubbed in response to the court order. The real reviewer’s response: “what court order? I haven’t heard anything about that.” For more on the scheme, go HERE.

Anyhow, for you lawyers, if someone posts a negative online review about you, don’t respond by filing a lawsuit against a stooge defendant. Don’t do it for clients who are the subject of negative reviews either.

Frankly, I think any lawyer who knowingly files lawsuits of this type effectively applies for induction into the Was ThatWrongHall of Fame.

• In re Petition for Disciplinary Action Against Allison Wiles Maxim Carlson, Supreme Court A13-1091 (Minn. 2013) (Minnesota lawyer reprimanded for falsely posing as a former client of opposing counsel and posting a negative review about opposing counsel on a website. See also Petition for Disciplinary Action)

• Wash. St. B. Ass’n, Advisory Op. 2014-02 (2014) (lawyer who claims information on a website listing becomes responsible for ensuring that info in the list conforms to the RPC; lawyer must delete false or misleading comments or endorsements attached to lawyer’s profile; and lawyer may endorse another lawyer only if the endorsement is accurate)

• B. Ass’n of San Francisco, Ethics Op. 2014-1 (2014) (stating that while lawyers may respond to an online review, the duty of confidentiality still prevents any disclosure of confidential information without the client’s consent)

• N.Y. St. B. Ass’n, Op. 1032 (2014) (lawyer may not disclose confidential client information solely to respond to former client’s criticism of the lawyer posted on a lawyer-rating website)

New Hampshire Bar Association Ethics Committee, NH Bar News, February 2014 (Lawyer may make limited response, but not so detailed as to divulge confidential information).

• Los Angeles County B. Ass’n, Ethics Op. No. 525 (2012) (lawyer may publicly respond to comments published by a former client if (1) no confidential information is disclosed, (2) the response does not injure the former client in any matter involving the prior representation, and (3) the response is proportionate and restrained)

• S.C. B, Ethics Advisory Op. 09-10 (2010) (once lawyer claims website listing, information contained therein are subject to rules governing communication and advertising; lawyer may invite peer reviews and comments but such comments are governed by the RPC and the lawyer is responsible for the content)

Lots of entries this week! Must be everyone is looking forward to today’s post . . . not for the answers, but for the traditional Steelers tie in Week 1 of the NFL season. Normally I’d have worn it Friday, but Big Ben and Company open tonight, so I’m wearing it today.

Spoiler alert: answers follow the Honor Roll. If you’d like to take the quiz, it’s HERE.

One of the rules includes a so-called “self-defense exception.” I’ve blogged on it twice. Essentially, the rule says “don’t do this” but then says “but, you can do this to defend yourself.” Last month, the Texas State Bar became the latest jurisdiction to conclude that the self-defense exception “cannot reasonably be interpreted” as allowing a lawyer to:

A. punch a client.

B. engage in discourteous conduct in response to unfair criticism from a judge that was made in the presence of a jury.

C. arrange for a bank to use the lawyer’s operating account to cover overdrafts to a client trust account.

D. disclose information relating to the representation of a client in response to a negative online review from the client.

The self-defense exception is in Rule 1.6(c)(3). It states that a lawyer may disclose information relating to the representation, without client consent, “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client . . . or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” In August, Texas joined five other jurisdictions in concluding that a negative online review is neither a “controversy” nor “proceeding” for purposes of Rule 1.6(c). The Texas opinion is HERE.

Question 2

Under the Vermont Rules of Professional Conduct, which is different from the others?

A. the representation will result in a violation of the rules of professional conduct.

B. the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services.

C. the representation has been rendered unreasonably difficult by the client

D. other good cause exists.

A lawyer MUST withdraw if continued representation will result in a violation of the rules. In the three other situations, withdrawal is permissive, but not mandatory. Thus, A is the correct answer. See, Rule 1.16.

With that in mind, what specifically am I referring to when I respond to an attorney inquiry by saying “you need to know if your client has any, where it is, and how to produce it. You also need to know how to ask it for it from an opposing party, how to handle it, how to review it, and how to use it.”

Electronically Stored Information. (I gave credit here for metadata, social media, etc, etc.) I blogged about tech competence HERE. The Cal State Bar set out a lawyer’s duties with respect to ESI very clearly in an opinion that is HERE.

Question 4

Opposing counsel sends responses to your discovery requests. Reviewing the material, you find a document that you know or reasonably should know was inadvertently sent. Under the Vermont Rules of Professional Conduct, your ethical duty is:

A. to notify opposing counsel.

B. to notify opposing counsel & return the document upon request.

C. to use the document if it helps your client.

D. to take steps necessary to determine whether the production waived the privilege.

Rule 4.4(b) states that “a lawyer who receives a document relating to the representation of the lawyer’s client and who knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” That’s it.

Comment 2 indicates that “whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these rules, as is the question of whether the privileged status of the document has been raised.”

Comment 3 indicates that “some lawyer may choose to return a document unread, for example, when the lawyer learns before receiving the document that it was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer.”

Question 5

In the 1980’s, Jan Schlictmann was a young attorney in Massachusetts. He filed a class action lawsuit alleging, among other things, that discharge from two tanneries had contaminated the local water supply and caused a leukemia cluster. During the litigation:

opposing counsel responded to the suit with a Rule 11 motion, arguing that Schlictmann had filed a frivolous complaint and committed other ethical missteps;

Schlictmann invoked Rule 1.6 and the attorney-client privilege to avoid having to submit to cross-examination by opposing counsel at a hearing on the Rule 11 motion;

analyzing Rule 1.13, opposing counsel determined that the owner of one of the tanneries needed personal counsel;

the owner was eventually found to have lied while testifying at trial; and,

according to some commentators, Schlictmann may or may not have rejected settlement offers without communicating them to his clients.

Two-part question:

What is the name of the movie about the case? Who played Attorney Schlictmann?

A CIVIL ACTION, with John Travolta playing Attorney Schlictman. Bonus to Herb Ogden for knowing that William Cheeseman was the lawyer who filed the Rule 11 motion. Herb also pointed out that Attorney Cheeseman worked with Vermont’s own Scott McGee after retiring from practicing in Massachusetts.

A. Failure to preserve. In VT, V.R.C.P. 34 applies (as does F.R.C.P. 34). For an analysis of an attorney’s dutie with respect to ESI, see this opinion from the Cal State Bar or this opinion from the San Diego County Bar Association. My general tip to lawyers is that the duty of competence includes a duty to understand how to request, review, and introduce ESI, as well as a duty to understand how and when to advise a client to preserve ESI.

B. Failure to produce

C. Failure to produce in usable format

D. Overly broad requests for ESI

Question 2

At a seminar I did earlier this week, I explained that “the rule used to be that no matter what you called it, it had to go into trust until earned. That rule has been somewhat relaxed.”

The ethical duty of competence also includes knowing how to introduce (or object to) evidence. In a case it decided this year, the Vermont Supreme Court stated that:

Unlike a past recollection recorded, a declarant need not specifically avow to the reliability of an excited utterance in order for it to be admitted.Rather, the fact that the statement was caused by a “startling event” generally is sufficient.

State v. Kelley, 2016 VT 58, ¶27

Question 4

A former client posts a negative review of you online. Which is most accurate?

A. The rules prohibit you from replying or commenting

B. You may reply or comment, but you may not do so in way that violates the rules.

C. The prohibition on the disclosure of information relating to the representation no longer applies. The client waived it.

1.6(c) allows disclosure if there is a court case. The court of public opinion does not qualify. I suppose there may be a way to respond without disclosing confidential information. For example, “The Shangri-la Law Firm strives to provide high-quality legal representation that is tailored to our client’s goals. If your experience fell short of our firm’s standards, please contact our managing director G. Edward Percival, IV, Esq.

For more on online reputation management, see the cites that I’ve pasted in below the answer to Question 5.

Question 5

Speaking of technology and evidence, a trial that’s taking place in LA made the news this week. The issue at trial is whether a band “stole” a rift from another writer’s song and used the rift in one of the most (over)played songs in classic rock history. During his opening statement, the plaintiff’s attorney played a video that showed a musician playing the plaintiff’s song, then the defendant’s. The video was not on the exhibit list. The trial continues, but by playing a video that wasn’t on the exhibit list, plaintiff’s attorney might cause a mistrial.

Name the band that’s on trial.

Led Zeppelin. An account of the opening statement is HERE. Bonus to Hal Miller for knowing the song at issue is “Stairway to Heaven.”

ONLINE REPUTATION MANAGEMENT & RULE 1.6

Here’s the outline I use for issues related to Online Reputation Management

• In re Petition for Disciplinary Action Against Allison Wiles Maxim Carlson, Supreme Court A13-1091 (Minn. 2013) (Minnesota lawyer reprimanded for falsely posing as a former client of opposing counsel and posting a negative review about opposing counsel on a website. See also Petition for Disciplinary Action)

• Wash. St. B. Ass’n, Advisory Op. 2014-02 (2014) (lawyer who claims information on a website listing becomes responsible for ensuring that info in the list conforms to the RPC; lawyer must delete false or misleading comments or endorsements attached to lawyer’s profile; and lawyer may endorse another lawyer only if the endorsement is accurate)

• B. Ass’n of San Francisco, Ethics Op. 2014-1 (2014) (stating that while lawyers may respond to an online review, the duty of confidentiality still prevents any disclosure of confidential information without the client’s consent)

• Pa. B. Ass’n, Formal Op. 2014-300 (2014) (lawyer may not give detailed response to on-line criticism of the lawyer by a client; lawyers also may just ignore the on-line criticism; the self-defense exception is not triggered by a negative on-line review)

• N.Y. St. B. Ass’n, Op. 1032 (2014) (lawyer may not disclose confidential client information solely to respond to former client’s criticism of the lawyer posted on a lawyer-rating website)

• Los Angeles County B. Ass’n, Ethics Op. No. 525 (2012) (lawyer may publicly respond to comments published by a former client if (1) no confidential information is disclosed, (2) the response does not injure the former client in any matter involving the prior representation, and (3) the response is proportionate and restrained)

• S.C. B, Ethics Advisory Op. 09-10 (2010) (once lawyer claims website listing, information contained therein are subject to rules governing communication and advertising; lawyer may invite peer reviews and comments but such comments are governed by the RPC and the lawyer is responsible for the content)

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Friday’s quiz was the last before the ultimate quiz: the bar exam begins tomorrow. Many recent grads read this blog. Good luck to all who are taking the exam!

Spoiler alert: the answers follow the Honor Roll. If you want to read the questions before you review the answers, go HERE. Question 5 spurred quite a bit of discussion, even among people who didn’t enter the quiz. Last minute hint: remember….this is an ethics blog.

Lawyer knows that she has earned a portion of the funds that she is holding in her trust account. She intends to reconcile the trust account & withdraw the earned fees as soon as she can get around to it. Work is busy.

Although the word does not appear in the Rules of Professional Conduct, what is the common name used to describe Lawyer’s violation of the Rules?

COMMINGLING

Question 3

Rule 1.6(a) prohibits a lawyer from disclosing information relating to the representation of a client without the client’s informed consent or unless the disclosure is impliedly authorized to carry out the representation. Rule 1.6(c), however, permits disclosure of otherwise protected information “to establish a claim or defense . . . in a controversy between the lawyer and the client [OR] to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” Rule 1.9(c) operates to apply Rule 1.6 to former clients.

Former Client (“FC”) posted a negative online review of Lawyer on Yelp. Lawyer intends to reply with a post that would include information covered by Rule 1.6(a). Most courts and bar associations that have addressed the issue have concluded that:

Attorney calls me with an inquiry. I listen, then reply: “the Comment to the rule is clear: your representation that you’re required to do so should be sufficient. You shouldn’t have to say anything more.”

I’m looking for a rather specific answer here: what type of pleading did Attorney call to discuss?

Of all the lawyers who have argued cases before the United States Supreme Court, only seven (7) were either a past or future President of the United States. Name the last lawyer who was either a past or future President to argue a case before the US Supreme Court.

RICHARD NIXON argued Time, Inc. v. Hill, 385 US 374 (1967)

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Here’s the outline I use for issues related to Online Reputation Management

• In re Petition for Disciplinary Action Against Allison Wiles Maxim Carlson, Supreme Court A13-1091 (Minn. 2013) (Minnesota lawyer reprimanded for falsely posing as a former client of opposing counsel and posting a negative review about opposing counsel on a website. See also Petition for Disciplinary Action)

• Wash. St. B. Ass’n, Advisory Op. 2014-02 (2014) (lawyer who claims information on a website listing becomes responsible for ensuring that info in the list conforms to the RPC; lawyer must delete false or misleading comments or endorsements attached to lawyer’s profile; and lawyer may endorse another lawyer only if the endorsement is accurate)

• B. Ass’n of San Francisco, Ethics Op. 2014-1 (2014) (stating that while lawyers may respond to an online review, the duty of confidentiality still prevents any disclosure of confidential information without the client’s consent)

• Pa. B. Ass’n, Formal Op. 2014-300 (2014) (lawyer may not give detailed response to on-line criticism of the lawyer by a client; lawyers also may just ignore the on-line criticism; the self-defense exception is not triggered by a negative on-line review)

• N.Y. St. B. Ass’n, Op. 1032 (2014) (lawyer may not disclose confidential client information solely to respond to former client’s criticism of the lawyer posted on a lawyer-rating website)

• Los Angeles County B. Ass’n, Ethics Op. No. 525 (2012) (lawyer may publicly respond to comments published by a former client if (1) no confidential information is disclosed, (2) the response does not injure the former client in any matter involving the prior representation, and (3) the response is proportionate and restrained)

• S.C. B, Ethics Advisory Op. 09-10 (2010) (once lawyer claims website listing, information contained therein are subject to rules governing communication and advertising; lawyer may invite peer reviews and comments but such comments are governed by the RPC and the lawyer is responsible for the content)